No homicide charge for SIDS daycare death

A Norfolk Circuit Court has dismissed felony homicide charges against the director of a church daycare center where a seven-week old infant died of Sudden Infant Death Syndrome.

Norfolk Circuit Judge Charles E. Poston said showing the center ignored SIDS risk factors such as placing an infant on its stomach to sleep, did not provide a basis for a homicide charge.

His Jan. 3 decision in Commonwealth v. Futrell is the first reported case construing Virginia’s statute codifying SIDS, Virginia Code § 32.1-285.1, Poston wrote. On his own motion, the judge reconsidered charges he allowed last September, and decided the provider could not be criminally liable for the baby’s unexplained death.

Defendant Tammy Futrell was director of the Little Eagles Day Care, a childcare center affiliated with the Bethel Temple Church of Deliverance in Norfolk when seven-week old Dylan Cummings died on May 25, 2010. As a religiously affiliated center, Little Eagles was exempt from state regulation and licensure.

That morning, Center employee Juanita Bell noticed the baby was “trying to catch his breath” while lying on his stomach, but Bell told no one. She left the center for a doctor’s appointment, so that employee Dinnetta Feeney remained as the sole caretaker for 10 infants.

Feeney placed Dylan on his stomach to sleep, “as was the practice at Little Eagles,” Poston wrote. “The room was warm, stuffy, very small and dark, and Dylan’s crib consisted of two foam pads and an ill-fitting sheet,” the opinion said. At 11:30 a.m., Feeney went to lunch, out of eyesight and earshot of Dylan, although she did occasionally check on the babies. At 2:00 p.m., Feeney found Dylan lifeless, with “vomit or liquid” coming out of his mouth. An autopsy determined SIDS was the cause of death.

The prosecutor offered an expert witness to testify that the risk of SIDS death “increased significantly” because the daycare director allowed her employees to engage in risky behavior.

But Poston said a jury could not find that any act by Futrell or her employees was a proximate cause of Dylan’s death, even if their actions “increased the risk factors associated with SIDS.”

There “can be no proximate cause of death when SIDS is the sole cause of death because, by definition, no legal or medical cause of death can be ascertained,” he said.

Exposing an infant to SIDS risk factors cannot be used to prove proximate cause, the court concluded.

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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